Judges going too far with sentence credits, Supreme Court told

A federal lawyer told a skeptical Supreme Court Thursday that judges should not be drastically reducing the sentences of criminals who serve time in pre-trial custody — even if the law governing sentencing is vague.

David Schermbrucker admitted that a 2009 Conservative government law meant to reform sentencing rules for those locked up prior to trial is unclear.

But, he said, the intent of the Truth in Sentencing Act was clear even if the wording was not: to establish rules on how far judges can go in reducing a sentence to compensate an offender for time spent in pre-trial custody.

Schermbrucker, along with a Government of Ontario lawyer, tried to convince the court that judges have been reading into the law incorrectly and handing out sentences that are more lenient than the law intended.

Specifically, the lawyers were appealing sentences in two separate cases, where the offenders received credit for more time than they served in pre-trial custody. The cases were heard in tandem Thursday.

The lawyers argued that even though the 2009 law permits judges to give slightly more than a 1:1 ratio for time served in pre-trial custody, judges were invoking the exception to the rule — a 1.5:1 credit — too often.

Ottawa wants the court to clarify the law.

In most cases in Canada, an individual convicted of a crime will only have to serve two-thirds of the sentence in jail. That early release benefit, however, is not extended to those in pre-trial custody.

As a result, judges historically have given a credit of 2:1 for time served in pre-trial custody because of poor conditions in jails and because of the absence of early release. In cases where pre-trial custody conditions are especially poor – due to overcrowding, for example – judges have been known to order 3:1 sentence credit — knocking three days off the sentence for every day spent in pre-trial lockup.

The result was that those who did time in pre-trial custody were spending less time in prison than those who pleaded guilty when charged.

Ottawa made what it described as an attempt to even the playing field in 2009 with the Truth in Sentencing Act, which capped sentence credit at 1:1. The law did allow for judges to give a credit of up to 1.5:1 “if the circumstances justify it.”

The law never defined those “circumstances” and judges began regularly doling out 1.5:1 credit because they understood the term “circumstances” to include the loss of early release.

Ottawa argues that early release was never meant to be taken into account in calculating sentence credit because it is not a unique factor involving a specific individual’s time in custody.

“I agree … (the law) could have been worded a little more directly,” Schermbrucker told the court. “But … the loss of early release is not a circumstance.”

Schermbrucker said judges should give credit of 1:1 in most cases.

But interveners in the case, which included the Criminal Lawyers’ Association of Ontario and the Canadian Civil Liberties Association, argued that the law is clear enough — and it does not exclude early release as a factor. They argue that, if pre-trial custody credit is capped at 1:1, those in pre-trial custody would ultimately serve more time than those who pleaded guilty right away, unbalancing the system.

Luke Craggs, the lawyer for one of the men whose extra-credit sentence Ottawa is appealing, told the court the difference in jail time served between those getting a 1.5:1 credit and those limited to a 1:1 credit is “eye-popping.”

“We have 10 months in jail, 20 months in jail and 23 months in jail,” he said about the different sentences. “That is unfairness.”

During the hearing, both Chief Justice Beverley McLachlin and Justice Rosalie Abella expressed concern with a law that can impose substantially different sentences for the same crime.

John Howard Society lawyer Andrew Faith said it never would have been Parliament’s intent to strip early release considerations from judges deciding on a sentence for those who served time before trial.

Brennan Smart, the lawyer representing the other man whose sentence credit is being appealed, told judges that the law was written the way it was to preserve judges’ discretion in sentencing.

“If Parliament wanted to change that,” he said, “it could have done so expressly — they have not. I think that means they wanted to maintain the discretion for trial judges.”

Critics charge Ottawa is pushing for 1:1 sentencing so that more people will plead guilty at the outset in order to avoid a longer jail term as a result of pre-trial custody.

“It’s a terrible, unfair situation here,” said Toronto criminal lawyer Daniel Brown, who is not involved in the case. “They are coercing guilty pleas.”